Soman v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 10TH DAY OF JUNE 2014/20TH JYAISHTA, 1936 CRL.A.No. 1689 of 2005 (F) ------------------------------AGAINST THE JUDGMENT IN SC 792/2001 of ADDITIONAL SESSIONS COURT (FAST TRACK-I), TRIVANDRUM DATED 06-09-2005 -------- APPELLANT/ACCUSED: -------------------------- SOMAN, S/O.KUTTAN, THADATHARIKATHU VEEDU, NELLIKKAD, ANAKUDI, VAMANAPURAM VILLAGE, TRIVANDRUM DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.A.G.GIRISH KUMAR RESPONDENT/STATE: ------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI.ABHIJETT LESLI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.1689 of 2005 -----------------------------------------------Dated this the 10[th] day of June, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Thiruvananthapuram, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for 1 ½ years and to pay a fine of 1,00,000/- and, in default of payment of fine, to₹ undergo rigorous imprisonment for six months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW1, the Excise Inspector, Excise Range Office, Vamanapuram, and his party were on patrol at Aramthanam in Vamanapuram, at about 1.00 p.m. on 25-09-1999. While Crl. Appeal No.1689 of 2005 -2- so, the appellant was seen carrying a green coloured plastic bag in his right hand. Seeing the Excise Party, the appellant attempted to flee away from the place. But, he was stopped there by the Excise Party. On examination, 25 polythene covers each of 200 ml. capacity containing about 150 ml. of some liquid were seen. Out of them, one cover was taken by PW1 and opened it and on examination of its contents, it was revealed that the cover contained arrack. All other covers were similar and hence not opened. Since the appellant has committed an offence, he was arrested then and there. Ext.P2 is the Arrest Memo prepared by PW1. Ext.P3 is the Letter of Intimation of the arrest prepared by PW1. All the 25 polythene covers containing 3.750 litres of arrack as a whole were put together in the plastic bag and the bag was labelled and sealed and seized under Ext.P1 Seizure Mahazar by PW1 in the presence of witnesses. Thereafter, PW1 went to the Excise Range Office, Vamanapuram, with the appellant, contraband and the records and registered a case. Ext.P4 is the Crime and Crl. Appeal No.1689 of 2005 -3- Occurrence Report thus prepared by PW1. He has produced the appellant, properties and the records before the concerned Magistrate on 25-09-1999 itself. A request was also made by PW1 for taking sample of the properties for subjecting the same to chemical analysis. The properties were returned with a direction to produce them on the next working day. Accordingly, it was reproduced on 28-09-1999 when, after taking the sample, the contraband was directed to be kept at the Excise Range Office until further orders. M.O.1 is the plastic bag and M.O.2 series are the covers containing the contraband arrack. 4. PW1 questioned some witnesses and recorded their statements. Subsequently, PW4, the Excise Inspector, Excise Range Office, Vamanapuram, has continued the investigation. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the Judicial First Class Magistrate's Court-II, Attingal. 5. The learned Magistrate, after complying with the Crl. Appeal No.1689 of 2005 -4- necessary legal formalities, committed the case to the Court of Session, Thiruvananthapuram, and, from there, it was made over to the Assistant Sessions Court, Attingal. Subsequently, it was made over to the Additional Sessions Court (Adhoc)-I, Thiruvananthapuram. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution has examined PWs.1 to 4 and marked Exts.P1 to P5 and M.Os.1 and 2 series on their side. The appellant was questioned under Section 313 of Cr.P.C. He has denied all the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 6. The learned counsel for the appellant submits that there is no evidence to show that the sample of the Crl. Appeal No.1689 of 2005 -5- contraband subjected to chemical analysis in this case was actually drawn from the contraband allegedly seized by PW1 under Ext.P1 Seizure Mahazar. Therefore, he further submits that Ext.P5 Certificate of Chemical Analysis certifying that the sample of the contraband contained 27.96% by volume of ethyl alcohol did not connect the appellant with the offence alleged against him. 7. The prosecution does not have a case that the sample of the contraband was taken at the time of its seizure by PW1 under Ext.P1. PW1 did not depose also that he had taken sample of the contraband at the time of its seizure. Even though the contraband was produced before the court by PW1 along with a List of Property, that list was not tendered or marked by the prosecution. The description of the contraband in the List of Property also shows that no sample was taken by PW1 from the bulk. No sample is described in this document. Moreover, the total quantity of arrack, namely, 3.750 litres, has been described as containing in 25 polythene covers of the size 200 ml. each. Crl. Appeal No.1689 of 2005 -6- The submission made by the office of the court before the Magistrate also shows that no sample was produced before the court. That apart, PW1 submitted a request dated 25-09-1999 before the court for taking sample for the purpose of subjecting it to chemical analysis. All these facts clearly indicate that the sample was taken at the court and sent it for chemical analysis. Ext.P5 Certificate of Chemical Analysis shows that the quantity of sample sent for chemical analysis was 180 ml. It is the prosecution case that PW1 has seized 25 polythene covers each containing about 150 ml. of arrack from the appellant. PW1 opened only one such polythene cover for the purpose of ascertaining its contents. He has no case that he has opened any other cover. For obtaining 180 ml. of arrack as sample, at least, two such polythene covers should be opened and sample should be taken. How many such covers have been opened for the purpose of drawing sample of the contraband at the office of the court ? Who has drawn such sample from the bulk at the court ? No answer is forthcoming. The property clerk of the Crl. Appeal No.1689 of 2005 -7- court was not examined. The Forwarding Note was not marked. In fact, there is no evidence to show that the sample subjected to chemical analysis was drawn from the bulk of the contraband produced by PW1 before the court. ## 8. This Court in **Sasidharan v. State of Kerala (2007** ## **(1) KLT 720)** held as follows: “It is true that the two independent attestors to Ext.P1 mahazar prepared by PW1 from the spot itself, have not been examined by the prosecution. One of those independent witnesses was no more and the other witness was not available. But the evidence of PWs 1 and 2 is quite credible to show that the accused was apprehended with a can allegedly containing contraband arrack. Notwithstanding the physical confirmation by PW1 of the contents in the can to be arrack by taste and smell the prosecution was not content with that identification. That is why PW4 filed the forwarding note before the court for taking sample and despatching the same for chemical examination. Indeed, the law also insists on such a course of action (see AIR 1967 SC 1550 - State of A.P. v. Madiga Boosenna & Ors. and 1970 KLT 427 Muthan Ankannithu v. State of Kerala). But there is no evidence to show that sample was taken from the can produced in court and that it was the said sample which was tested by the Chemical Examiner. The property list shows that the can which was received in court on 10-02-1998, was directed to be returned to the Excise Inspector himself for safe custody after taking sample Crl. Appeal No.1689 of 2005 -8- therefrom. The said endorsement on the reverse of the property list does not prove that a sample was drawn from the can which was produced in court. The thondy clerk, who was in charge of the M.O. produced in court, was not examined nor was any proceedings prepared and produced in this case to show that sampling was done in this case. Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant. There is no evidence to show that the sample, which was analysed under Ext.P5 chemical report, was the sample taken from the can allegedly seized from the accused. When the sample changed hands before reaching the Chemical Examiner the Prosecution had to necessarily examine the various persons who were in custody of the sample to prove that while in their custody the seals on the sample had not been tampered with (see AIR 1980 SC 1314 State of Rajasthan v. Daulat Ram and 1993 (2) KLT 550 SC - Valsala v. State of Kerala). The prosecution had a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the Chemical Examiner in a fool proof condition. For this, there is no evidence.” In the case on hand, as already found, there is absolutely no evidence to show that the sample sent for chemical analysis was drawn from the contraband seized. This is fatal to the Crl. Appeal No.1689 of 2005 -9- prosecution case. 9. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to be acquitted of the offence under Section 55(a) of the Abkari Act. 10. In the result, the conviction and sentence passed against the appellant are set aside. He is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks & kns/- //TRUE COPY// P.A. TO JUDGE